Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School.

Let me say at the outset that I think that Kevin has done an excellent job on the book (as have OUP in its production). I should probably also say, in the interests of full disclosure, that I flatter to call myself a friend of Kevin’s and have enjoyed the discussions we have had over aspects of the book during its gestation. The book is exceptionally well researched and written, and fills a significant lacuna in the literature. It has a strong narrative flow, and skilfully entwines the historic and legal aspects of the cases. There are many rich seams to mine in the book, but I will limit myself to one, and one of the rare instances where I disagree with Kevin, at least a little. This is the issue of the legacy of the Tribunals.

We used to hear quite a lot about the Nuremberg legacy; often in terms that bemoaned its betrayal. The International Criminal Tribunals for Yugoslavia and Rwanda, and the Special Court for Sierra Leone are now all self-consciously attempting to shape their respective legacies. Sadly, it is not clear to me that, in spite of Telford Taylor’s hopes and desires, the Nuremberg Military Tribunals had much of a legacy. In contrast, in the book, Kevin is relatively upbeat about aspects of their legacy (although other aspects are characterised, rightly, as “a complete failure” (p.400)).

Professor Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School, UK. He is the author of Prosecuting International Crimes: Selectivity and the International Criminal System (Cambridge, 2005) and co-author of An Introduction to International Criminal Law and Procedure (Cambridge, 2007).

One of the most interesting decisions of the International Criminal Court on confirmation of charges has passed by with little comment so far. Whilst the Al-Bashir Arrest Warrant decision has received very considerable attention (for example – shameless self-promoter that I am – in the symposium in the most recentJournal of International Criminal Justice), the lesser-known confirmation of charges decision in the case against former Congolese Vice-President Bemba (in relation to alleged crimes in the Central African Republic) raises some extremely interesting issues deserving of comment. For example, the decision (Prosecutor v Jean-Piere Bemba Gombo, decison of June 15, 2009) has interesting things to say in relation to definitions of crimes, their contextual elements, and themental element as provided for in Article 30 of the ICC Statute. Indeed far too many matters to deal with in any meaningful way in a post of this nature.

As such, this post will concentrate on only one aspect of the decision, command responsibility, as this is the first time this principle of liability (and I call it as such deliberately) has been the subject of significant comment by the ICC. Its decision on point is important, not only for the comments the Pre-Trial Chamber make directly on the issue, but also because it is indicative of the extent to which the ICC is looking, whilst showing considerable respect at times to the jurisprudence of the ICTY and ICTR, to create a separate regime of what might be termed ‘Rome law’. Whether this is a good idea or not, or whether we might see a problematic fragmentation of international criminal law from the multiplicity of Tribunals applying different definitions of international criminal law will be (briefly) returned to at the end. Read the rest of this entry…

Editors note: Professor Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School, UK. He is the author of Prosecuting International Crimes: Selectivity and the International Criminal System (Cambridge, 2005) and co-author of An Introduction to International Criminal Law and Procedure (Cambridge, 2007).We are pleased to welcome him to EJIL:Talk!

I am very flattered to have been asked to comment on EJIL Talk. It is also very pleasant to be able to do so in relation to a piece that I genuinely like and, given the increasing privatised nature of many actions that were previously considered truly jure imperii, deals with a question of unquestionable importance.

I would primarily like to see what State responsibility can do here. I think Carsten Hoppe raises the right issues, the positive duties of States under human rights law and IHL are hugely important here, but I would like to play devil’s advocate and suggest some alternative views and other ways in which State responsibility might be invoked here. I raise the following not to criticise, but to suggest some additional lines of inquiry. They are, perhaps, somewhat speculative, but, the point of EJIL talk is to initiate debate, so in that spirit, let us enter the fray!

The first is on attributability insofar as it is covered by Article 8. There is, as we all know, a disjunction between the approach taken by the ICJ in Nicaraguaand reaffirmed in Bosnian Genocide case, and that taken by the ICTY in Prosecutor v. Tadić as to the level of control that is required for liability to be incurred. The ICJ considers the test to be ‘effective control’, whilst the ICTY considered it to be ‘overall control’ Although the ICJ in Bosnian Genocide casesaid that maybe for international criminal law the test is different, the ICTY saw itself as applying the general rules on State responsibility. If the ICJ was wrong and the test for attributability in some contexts is ‘overall control’, then there must be some room for arguing that employing States have overall control over PMC’s. Not least, they would have the power to bring the contract to an end. This would ensure iability for the offence itself. I have to say that there is rather a lot to be said for the more functional approach taken by the ICTY (on control, and, for example, nationality) rather than the rather rigid approach that characterises the ICJ’s position on point. Read the rest of this entry…